HKSAR v. TAI YIU TING AND OTHERS

CACC 128/2019

[2021] HKCA 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2019

(ON APPEAL FROM DCCC NO 480 OF 2017)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

A. Introduction

1.  In this matter, we shall refer to the applicants generally and, where necessary, to individual applicants by their trial designations.

2.  In March 2013, D1, D2 and D3 (who were also referred to at trial and in this appeal as “the Trio”) initiated or launched a campaign^[1], which would lead to a mass protest movement known as the “Occupy Central Movement”^[2], resulting in the actual occupation of Central commencing in the early hours of 28 September 2014.  The three applicants were jointly charged with conspiracy to commit public nuisance^[3] (Charge 1).  Together with D4, D5, D6 and D7, they were further jointly charged with incitement to commit public nuisance^[4] (Charge 2); and incitement to incite public nuisance^[5] (Charge 3).  D8 faced two charges: incitement to commit public nuisance (Charge 4) and incitement to incite public nuisance (Charge 5); whilst D9 faced a single charge of incitement to commit public nuisance (Charge 6).  In respect of these various charges, all applicants pleaded not guilty and stood trial together before HH Judge Johnny Chan (“the judge”) in the District Court.

3.  On 9 April 2019, the judge convicted the applicants of the respective charges they faced; save that D1 and D2 were acquitted of Charge 3, and D3 was acquitted of Charges 2 and 3. 

4.  On 24 April 2019, the judge dealt with the sentencing of all applicants, save for D4, who was separately sentenced on 10 June 2019, and passed sentences ranging from immediate imprisonment to suspended terms of imprisonment to a Community Service Order.  D1 and D2 were each sentenced to 16 months’ imprisonment; D3 also received 16 months’ imprisonment, but the term was suspended for 2 years; D4, D7 and D9 received sentences of 8 months’ imprisonment suspended for 2 years[6]; D5 and D8 were each sentenced to 8 months’ imprisonment; while D6 was made the subject of a Community Service Order. 

5.  All applicants have sought leave to appeal against their convictions, whilst D1, D2, D5 and D8 originally sought leave to appeal against their sentences as well.  However, D2 and D5 have since abandoned their applications in respect of sentence, which had already been formally dismissed prior to the hearing of this appeal^[7].

6.  Given the complexity of the facts and issues in the case, the number of grounds of appeal (some of which involved questions of law only and did not, therefore, require leave to appeal) and the fact that there were altogether nine applicants, each separately represented (save for D2 and D3, who were jointly represented), the applications for leave to appeal against both conviction and sentence were ordered to be heard at the same time as the hearing of the appeals before this Court.  Accordingly, a 3-day appeal hearing was fixed to commence on 24 February 2020.

7.  Unfortunately, owing to the General Adjourned Period occasioned by prevailing public health concerns, the original hearing had to be vacated and was subsequently re-fixed, in consultation with the diaries of counsel, to 2, 3 and 4 March 2021.  Having heard arguments from the parties on those dates, this Court indicated that it would reserve judgment on all matters of which it was seized.  This is the judgment of the Court on both conviction and sentence, and the reasons therefor.

B.  The background to the Occupy Central Movement

8.  At a press conference on 27 March 2013, D1, D2 and D3 formally announced a campaign, which was aimed at achieving their advocated form of universal suffrage for the election of the Chief Executive of Hong Kong in 2017.  A critical stage of the campaign involved the launch of the Occupy Central Movement, pursuant to which some areas in Central were to be occupied, or obstructed, by a large number of protestors.

9.  On various occasions between April and October 2013, the Trio, either individually or collectively, continued to introduce their campaign to the public^[8]. These included their joint participation in a radio programme on 30 April 2013; in a deliberation at the University of Hong Kong on 9 June 2013; at a public gathering in Chater Garden, Central on 1 July 2013; and, by D3 on his own, at a street forum between June and October 2013[9].

10.  On 31 August 2014, the so-called “831 decision”[10] was announced, and a number of protests were held in its wake.  In particular, two public meetings (not the subject of any police objection) were held at Tim Mei Avenue between 26 and 27 September 2014^[11], which were not organised by the applicants; while another meeting (the subject of a police objection) was to be held in Central from 1 to 3 October 2014^[12], pursuant to a notification to the police filed by D3 on 18 September 2014^[13]. As events developed, this particular meeting did not take place, at least in the way it was originally intended.

11.  Between 26 and 27 September 2014, a large number of protestors assembled at, and in the vicinity of, Tim Mei Avenue^[14]. It may be noted that Tim Mei Avenue forms part of Central and Western District, one of the four districts on Hong Kong Island[15], according to the official guide produced by the Survey & Mapping Office of the Lands Department of the Hong Kong Government.  The following ensuing events are relevant to the issues before us. 

(a)  On 26 September 2014, the northbound carriageway of Tim Mei Avenue was cordoned off at about 5:30 pm[16]; and the southbound carriageway, at 8:30 pm^[17]. At about 10 pm, a number of protestors assembled at the East Wing Forecourt of the Central Government Offices (“CGO”)^[18] and thereafter refused to leave^[19].

(b)  After midnight on 27 September 2014, the northbound and southbound lanes of the carriageway, and the western pavement of Tim Mei Avenue, were fully occupied with people standing around^[20].  Many speakers appeared on the main stage at Tim Mei Avenue, calling for more people to come out to protest^[21].

(c)  On 27 September 2014, the traffic on both sides of Tim Mei Avenue was suspended^[22].

12.  It was against the background of these events that, in the early hours of 28 September 2014, the Trio appeared on the main stage at Tim Mei Avenue. A formal declaration that the Occupy Central Movement had commenced was made by D1 at 1:36 am on 28 September 2014^[23]. It was as a result of the words (or statements, speeches and utterances, as the judge also termed them) used to address the protestors by, or in the presence of, D1, D2, D3, D4, D5, D6 and D7 at Tim Mei Avenue between 27 and 28 September 2014, that Charges 2 and 3 arose.

13.  It was as a further result of the words used by D8 to address protestors at Fenwick Pier Street, and those by D9 to address protestors at Harcourt Road, on 28 September 2014, that Charges 4, 5 and 6 also arose.

C.  The prosecution case

C.1.  Charge 1 (against D1, D2 and D3)

14.  Charge 1 averred that, between a day in March 2013 and 2 December 2014, the Trio conspired together and with other persons to cause public nuisance through the unlawful obstruction of public places and roads in, or in the neighbourhood of, Central.

15.  The following events were of particular relevance to the prosecution case in respect of Charge 1:

(a)  The Occupy Central Movement was announced as early as March 2013; however, at that time, no mention was made of the precise date or place of the proposed occupation^[24]. Nevertheless, it was projected that there would be “several thousand to 10,000 people attending”^[25].

(b)  Shortly after the promulgation of the 831 Decision, the Trio resolved to carry out the fourth stage of the Occupy Central Movement, since it was by then believed that there was no further room for discussion^[26]. On 18 September 2014, pursuant to an agreement between the three of them, D3 filed a notice, Exhibit D3-1, of their intention to hold a public meeting in Central, under the Public Order Ordinance, Cap 245^[27]. Exhibit D3-1 contained particulars^[28] consistent with the objectives of the Occupy Central Movement announced by the Trio in March 2013.  It was also agreed between the three of them that the public meeting would go ahead even if it was, as indeed it eventually was, objected to by the police^[29].

(c)  Notwithstanding its intended dates and location, the announcement of the launch of the actual occupation was made at 1:36 am on 28 September 2014 at Tim Mei Avenue.

(d)  On 2 December 2014, the Trio announced their withdrawal from the Occupy Central Movement^[30].

(e)  On 3 December 2014, the Trio surrendered themselves to the police at Central Police Station^[31].

C.2.  Charges 2 and 3 (against D1 to D7)

16.  The prosecution alleged that, between 27 and 28 September 2014, D1, D2, D3, D4, D5, D6 and D7 acted as members of a joint enterprise to incite those protesting at Tim Mei Avenue to remain and demonstrate for a prolonged or indefinite period of time; and to call upon more people to come to obstruct the public places and roads at, and in the neighbourhood of, Tim Mei Avenue.

17.  Pausing here, it is relevant to note that on the first day of trial, namely, 19 November 2018, the prosecution were requested by the defence to clarify certain terms contained in Charges 2 and 3, namely:

(a)  “at and in the neighbourhood of Tim Mei Avenue”; which the prosecution identified as “the roads at and in the neighbourhood of Tim Mei Avenue”, contending that no further particularisation was necessary^[32]. In the result, the judge agreed that “the particulars are sufficiently clear, no further particulars are required”[33].

(b)  “prolonged or indefinite period of time”; which the prosecution clarified to mean “an undetermined time in the future”, as distinct from a lengthy period of time^[34].

(c)  “joint enterprise”; which the prosecution identified as[35]:

“[a] common purpose…to be inferred from the facts…for instance, standing on the stage, either making a speech or being present when another one is made and if you draw the inference that they assented to that…”.

18.  In relation to Charge 3 (and Charge 5), both of which alleged an offence of “incitement to incite”, there had been legal argument at an earlier pre-trial review hearing as to: (i) whether such an offence existed at common law and was applicable in Hong Kong; and if so, (ii) whether the offence was constitutional.  By a written ruling (“the 13 February 2018 ruling”), the judge held, with detailed reasons being given, that both questions should be answered in the affirmative^[36]. In his Reasons for Verdict, the judge also set out the actus reus and mens rea which were required to be established for proof of the offence^[37].

19.  In order to establish the acts of incitement in Charges 2 and 3, the prosecution pointed to the words spoken by the relevant applicants, via the public address system (“the PA system”), while they were on the main stage at Tim Mei Avenue on 27 and 28 September 2014.  Albeit not an exhaustive list, the following are examples of some of the things said:

Speaker(s)	Words spoken
On 27 September 2014
D6 (At 3:38 pm) [See Exhibit P17 at 1102]	Now we hope that everybody, yes, can really ask more people to come out and over-cram Tim Mei Avenue, also, it is hoped that the nearby carriageways will also be over‑crammed, and (we) continued to extend the area of our civil disobedience.[38]
D1 (D2, D4 and D6 present) (At 4:10 pm) [See Exhibit P20 at 1107]	Let’s over-cram Admiralty first. Where shall (we) over‑cram next?  Central!  We must be able to see the arrival of genuine universal suffrage in Hong Kong![39]
D4 (D1, D2 and D6 present) (At 4:10 pm) [See Exhibit P20 at 1107 and 1111]	Hey, let’s go to occupy Admiralty now. Thank you, Benny. ‘Chung’ (transliteration), now it is the ‘Chung’ (transliteration) of ‘Kam Chung’ (transliteration) (the name of Admiralty in Chinese).  Later, it will be the ‘Chung” (transliteration) of ‘Chung Wan’ (the name of Central in Chinese) ……” and “We hope to over‑cramming Tim Mei Avenue, right?  Over-cram Tim Mei Avenue!  Over-cram Tim Mei Avenue!  Over‑cram Tim Mei Avenue!  Over-cram Admiralty!  Over-cram Admiralty!  Over-cram Admiralty!  Good![40]
D6 (D4 and D7 present) (At 11:24 pm) [See Exhibit P40 at 1244-1245]	Right, well, let me tell you a piece of good news rather than always listening to those things that (make you feel) heavy(-hearted).  Well, we, now on the bridge outside Admiralty, it is still full of people all over the footbridge (there).  They are in the direction of our side, coming towards us here, right.  Our (activity) today, should be the largest Civil Disobedience (activity) over the years, certainly, the number of people, we have not yet got the largest of people, but (we) hope that the members of the public would not remain at our current achievements (attained), let us keep asking more people to come, over‑cramming Admiralty. Well!  As what we have seen, actually, there are huge crowds of people everywhere.  Well! We, starting from Harcourt Road to the entire Tim Mei Avenue, all were (packed with) people, the open space of the Legislative Council is also full of people, so everybody keeps asking people to come![41]
On 28 September 2014
D7 (D1, D2 D3 and D5 present) [See Exhibit P69 at 1545-1546]	However, we know that roughly more than ten thousand citizens have blocked the road (from) the Admiralty Centre, the whole of KFC to Rodney Street.  At the same time, at the Hong Kong Academy ‘Centre’ (sic) of Performing Arts, Wanchai, there are ten thousand people.  Adding (them) up, (we’ve) got a total of about thirty thousand people here.  Here, I am appealing to all the citizens in Hong Kong to come together – no matter whether (you) can enter the area or not, go to Admiralty, go to Wan Chai. Let us fill up the whole of Admiralty (and) Wan Chai.  Together, (we) can besiege the whole of Central Government Offices from the side of Rodney Street, from the side of the Hong Kong Academy ‘Centre” (sic) of Performing Arts.  We demand --……Let us fill up Admiralty and Wan Chai together.[42]
D5 and D7 (D1 and D3 present) (At 3:35 pm) [See Exhibit P74 at 1588-1589]	D5: Our – our friends who gather round here to watch have already over-crammed two more roads. D7: Hurray! D5: (The crowd) has already over-crammed two roads (outside) the Hong Kong Academy for Performing Arts. D7: And more citizens are coming successively.  (Let’s) continue to occupy the roads together. D5: We are asking more friends to come here, (we are asking) more friends to come here.  Let’s over-cram Admiralty.  (Let’s) over-cram Wan Chai.  (Let’s) over-cram Central. D7: Friends on that side, keep it up.  We know that some friends there have already prepared to dash out to occupy the road(s).  Let’s cheer them on, shall we? D5: Comrades, let’s over-cram Wan Chai together.  (Let’s) over-cram Admiralty. (Let’s) over-cram Central……” [43]
D5 and D7 (D1, D2 and D3 present) (At 4:06 pm) [See Exhibit P74 at 1591-1592]	D7: We have got news that … On the side of Harcourt Road …  many friends have already gone out onto the road! (They) have already occupied the road!  Hurray! D5: Occupy the road! D7: Occupy the road! D5: Occupy the road! D7: Occupy the road! D5: Occupy the road! D7: Occupy the road! D5: Hurray! D7: Hurray! D5: Hurray! D7: Hurray![44]
D5 and D7 (D3 present) (At 4:10 pm) [See Exhibit P74 at 1593]	D5: Our picket has just made a report that the 6 carriageways of H-Harcourt Road bound for Central as well as Causeway Bay, the 6 carriageways have already been over-crammed (with people) sitting (there)!  We have already over-crammed 6 carriageways (with people) sitting (there).  Keep coming!  Keep coming!  Keep coming! D7: Keep coming.[45]
D7 (D3 and D5 present) [See Exhibit P74 at 1594]	We are here to call for more people to come out to over-cram Admiralty (and) to over-cram Wan Chai with us. (Let’s) carry on with the Occupy (movement).[46]
D7 (D2 present) [See Exhibit P74 at 1598]	We are here to appeal to our friends who have not yet come to join us, come quickly to over-cram Admiralty and Wan Chai, and to occupy this Hong Kong that belongs to us.[47]

C.3.  Charges 4 and 5 (against D8); and Charge 6 (against D9)

20.  The prosecution alleged that, by his utterances made between 3:42 pm and 4:07 pm on 28 September 2014, D8 had incited those present at Fenwick Pier Street to cause a public nuisance and to incite more people to do the same.  The prosecution also alleged that, between 3:13 pm^[48] and 5:52 pm on the same day, D9 had appeared at Harcourt Road and used a loudspeaker to address those present, inciting them to walk out into the road and sit there so as to carry out civil disobedience; besiege the entrance on Harcourt Road; and occupy the six carriageways of Harcourt Road.

21.  The prosecution pointed to the following particular events of 28 September 2014:

(a)  Chief Superintendent Dover^[49] implemented an “exclusion plan”, pursuant to which the CGO was cordoned off.  Between 3:42 pm and 4:07 pm, D8 repeatedly asked the people at Fenwick Pier Street to go into the carriageway to “counter‑besiege” the police^[50].

(b)  At 4:17 pm, a fire engine^[51] leaving Kong Wan Fire Station in Wan Chai was only able to reach its destination at Admiralty Centre in Admiralty by making a detour and a u-turn at Lippo Centre against the on-coming traffic. That detour resulted in several minutes’ delay in attending to the report^[52]. Upon seeing the fire engine (as shown in Exhibit P86) in Fenwick Pier Street, D8 had instructed the pickets/marshals “to understand the matter”, and to find out why the fire engine should have to travel along Fenwick Pier Street^[53].

(c)  At 6 pm, the police used tear gas on the crowd gathered at Harcourt Road; however, the vehicular access remained blocked by protestors, who then began placing objects on the carriageway^[54].

22.  The prosecution also adduced three computer certificates (Exhibits P145-147) prepared by three different public bus companies to show the extent of the effect of the disruption to their services by the occupation^[55].

D.  The defence case

D.1.  The legal challenges

23.  In the proceedings before the judge, there were challenges as, indeed, there were before us, to the appropriateness and/or constitutionality of the charges in question^[56]. It was contended by the defence that: 

(a)  It was not appropriate to bring charges involving the common law offence of public nuisance, when alternative statutory offences relating to similar or lesser crimes were available to the prosecution.

(b)  The charges unnecessarily and unduly curtailed the constitutional rights which the applicants sought to exercise.

(c)  The incitement offences were unconstitutional, inasmuch as they lacked legal certainty.  Since “public nuisance” is a result-based offence, someone who incites cannot, and is in no position to, predict what will occur after the alleged incitement has occurred; neither can he/she regulate his/her conduct in advance, so as to avoid future criminal liability.  The offences were also said to violate the principle of non‑retrospectivity of criminal offences.

(d)  The charges did not satisfy the proportionality requirement^[57] and placed a very onerous burden on the applicants, as individual demonstrators, to show that their demonstration would cause no more than reasonable obstruction^[58].

D.2.  Other common defences

24.  Apart from the challenges against the appropriateness and constitutionality of the charges, the main lines of defence at trial may be summarised as follows:

(a)  None of the defendants had the requisite mens rea to commit the offences alleged against them^[59]; furthermore, there was no causative link established between each defendant’s conduct and the resulting public nuisance^[60].

(b)  Since Tim Mei Avenue had been cordoned off by the police at some stage, it was impossible for D1 to D7 to commit Charges 2 and 3^[61].

(c)  The extensive and prolonged occupation of roads and public places had resulted from the improper use of tear gas by the police^[62].

(d)  The offences in question were committed in the pursuit of civil disobedience^[63].

D.3.  The defence evidence

25.  None of the defendants, save for D2, elected to give evidence at trial.  Nevertheless, six defence witnesses were called on behalf of D2, and one on behalf of D6, thus making eight defence witnesses in all.

26.  In his evidence, D2 maintained that the objective of the Occupy Central Movement was not to paralyze Central, or the financial hub of the city^[64]. He made reference to an answer to that effect, which he had given to the press on 27 March 2013 (Exhibit P100, p 603)^[65], and also to two articles published in a newspaper on 4 March (Exhibit D2-3) and 23 August 2013 (Exhibit D2-5) respectively^[66], in which he advocated “proportionate” disruption.  In his view, with a turnout of some 10,000 participants, the Government would surely accede to the wishes of people^[67]. He considered it would be sufficient if the campaign could successfully arouse public attention^[68]. D2 further adduced the following documents, inter alia, at trial^[69]:

(a)  Exhibit D2-9 (OCLP - Manual of Disobedience), in order to support his contention that the whole idea of the Occupy Central Movement was to be arrested within a fairly short period of time.  In Exhibit D2-9, two scenarios were discussed: firstly, the arrest of a protestor who would then voluntarily board a police vehicle; and secondly, the arrest of a protestor who refused to move. 

(b)  Exhibit D2-10 (a Press Release by OCLP), in order to support D2’s evidence that the occupation had not been intended to last indefinitely, since the Trio had only “recommend(ed) participants to prepare enough food for two or three days.”

(c)  Exhibit D2-11 (the OCLP “Basic Tenets”), which stated that, “Given the strength of the Hong Kong Police establishment, the government has the capacity to arrest all the protestors in a matter of one or two days without resorting to force.”

27.  D2 maintained that the Trio only contemplated remaining on Chater Road for a few days^[70]. As things turned out, he and D1 remained at the occupied area from 27 September to 27 October 2014, whilst D3 returned home because of ill health.  On 28October 2014, D1 and D2, who were both University professors, decided to resume their teaching duties, and to fade out of the movement^[71].

E.  The Reasons for Verdict

E.1.  The legal challenges

28.  In respect of the appropriateness and constitutionality of the charges, the judge made the following rulings (in summary):

(a)  The prosecution was entitled to exercise its sole prerogative of preferring the charges it considered appropriate^[72]. 

(b)  The conspiracy charge did not have the undesirable effect of curtailing the various rights and protections alleged under the Basic Law, since[73]:

“If the Prosecution is able to prove that if the agreement under complaint is carried out in accordance with the intentions of the defendants, the demonstration in question would result in obstruction which is unreasonable according to the reasonableness test, and hence not warranted by law, those who are in the agreement cannot complain if a charge of conspiracy to cause public nuisance is brought against them.”

(c)  Neither the offences of incitement to commit public nuisance, nor incitement to incite public nuisance, lacked legal certainty: R v Rimmington [2006] 1 AC 459^[74].  The judge considered that the mental requirement of the offences focused on the intention of the person doing the inciting at the time of the incitement, not afterwards^[75]; and held that[76]:

“…the issue for the offence of “Incitement to commit public nuisance” is whether, at the time the incitement is made, the defendant (the incitor) intends or believes that if the incitee (B) does the act incited under the circumstances that are known or believed by the defendant (the incitor), the incitee (B) would commit the offence of public nuisance with the requisite mens rea. For the offence of “Incitement to incite public nuisance”, the issue is whether, at the time of the incitement, the defendant (the incitor) intends or believes that if the incitee (B) does the act incited under the circumstances that are known or believed by the defendant (the incitor), the incitee (B) would commit the offence of incitement with the requisite mens rea, namely, that the incitee (B) intended to incite another person or persons (C and so on), knowing that those other person(s), if they acted upon the incitee’s (B) incitement, would commit the offence of public nuisance.”

(d)  A proper application of the reasonableness test propounded by the Court of Final Appeal in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137, enabled the right balance to be struck between the competing rights of the protestors in a peaceful demonstration and those of other members of the public.  Since the offence of public nuisance required proof, not only of the fact that the obstruction had exceeded the bounds of reasonableness, but also that there was a common injury to the public, there was no question of a blanket criminalisation as alleged by the defence^[77].

E.2.  The common lines of defence

29.  The judge also dealt with the main lines of defence (summarised in para 24 supra), which we set out in turn as follows:

(a)  In respect of the charges against each defendant, the judge analysed the facts, the evidence and the submissions of counsel at great length, spanning some 150 pages in his Reasons for Verdict^[78]. For the incitement charges, the judge reminded himself that the mens rea of the defendants should be confined to the time of the actual incitements^[79].

(b)  The judge found that the closure of Tim Mei Avenue on 26 September 2014 was relevant in assessing the question of whether the defendants knew that the occupation would result in a public nuisance.  On this question, the judge said he gave them the benefit of the doubt^[80]. Nevertheless, he pointed out that, since the incitements by D1, D4, D5, D6 and D7 were to occupy the public places and roads at and in the neighbourhood of Tim Mei Avenue, the closure of Tim Mei Avenue itself could not have led them to think that the “over-cramming” of the other affected areas was warranted by law (or was not unwarranted or not unreasonable, as the judge put it)^[81].

(c)  The judge found that after tear gas had been used by the police, the Trio did not call for a cessation of the Occupy Central Movement but, instead, sought to take advantage of this turn of events.  He considered that the use of tear gas by the police did not break the chain of causation^[82], and was something that the Trio had in mind when addressing those gathered at Tim Mei Avenue in the early hours of 28 September 2014^[83].

(d)  The judge stated that civil disobedience was not a defence to a criminal charge^[84] (although he took into consideration the advocated purpose of the campaign^[85]).

E.3.  Charge 1

30.  In respect of Charge 1, the judge determined that a conspiratorial agreement to commit public nuisance had been reached by the Trio when Exhibit D3-1 was submitted to the relevant authority on 18 September 2014.  He found that, although the conspiracy agreement was implemented with modifications when the announcement of the commencement of the occupation was made on 28 September 2014^[86], the modified agreement remained an unlawful agreement “to cause public nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central”^[87], which covered Tim Mei Avenue and Harcourt Road in Admiralty^[88].  The judge held that the Trio did not in fact withdraw from the Occupy Central Movement until they announced their intention to do so on 2 December 2014^[89].

31.  The judge found that it was the Trio’s intention to merge their supporters with those protesting at Tim Mei Avenue.  Accordingly, they must have appreciated, given the large number of protestors, that any clearance action by the police would inevitably take considerable time.  Furthermore, causing the protestors to remain and fortify the defence of Tim Mei Avenue would also mean that the overall occupation of public places and roads in or in the neighbourhood of Central would last longer, and for an indeterminate period of time^[90].

32.  The judge found that a turnout of several thousand to 10,000 protestors (which was the Trio’s estimate) would be more than enough to give rise to a substantial disruption to the public^[91].  The judge considered that it would be unreasonable for the Trio to plan and call for an occupation “even for just a few days”, let alone the two days stated in the original notice^[92]. Applying the reasonableness test to these facts, the judge said it was unnecessary for the Trio to achieve civil disobedience by calling for the occupation of the entire carriageway^[93], although he accepted and took into account the importance of the objectives of the Occupy Central Movement^[94].

33.  The judge specifically described the assertions of D2 as to how the Occupy Central Movement would develop, and what it hoped to achieve, as “unrealistic” and “naïve”, holding^[95]:

“It is … unrealistic to suggest that “should tens of thousands turn out to Occupy Central, the primary concern of the authorities would not be a matter of arresting or dispersing the protestors. It would be a matter of moving towards introducing genuine universal suffrage and therefore removing any further need to cause disruption in accordance with the proportionality principle”. It is naïve to suggest that a concession to introduce the form of universal suffrage advocated by the Trio could be made by the government overnight with a click of fingers, it is equally naïve to suggest a mass protest of tens of thousands of people could be dispersed overnight even if a positive response were to come from the authorities. There is no basis to suggest that should tens of thousands turn out to Occupy Central, “that mass expression of resolve was anticipated to have been sufficient to achieve the desired result and therefore removing any further need to cause further disruption in accordance with the proportionality principle”.

D2 drew reference from the Anti-National Education protests and said the only foreseeable outcome of a tens of thousands turnout was that the government would accede to the wishes of the people.  In my judgment, the reference to Anti-National Education protests is not an apt one.  The subject matters of protests were entirely different.  D2 had no basis to assume that the government’s reactions to the large turnout in the Anti‑National Education protests and an equally large or even larger turnout in the protest in relation to the election of the Chief Executive of the HKSAR would be the same.”

34.  In the result, the judge convicted D1, D2 and D3 of Charge 1.

E.4.  Charges 2 and 3

35.  At the outset of his analysis of Charges 2 and 3, the judge found^[96]:

“Amongst the addresses/speeches made by D1 to D7 on the main stage at Tim Mei Avenue between 27^th and 28^th September 2014, the defendants, apart from appealing to the people present to occupy Tim Mei Avenue and to ask/invite others to do the same, there were also pleas to occupy Admiralty, Central and Wanchai, and pleas to ask/invite others to occupy Admiralty, Central and Wanchai.”

In respect of D2 and D3, the judge also said that, although neither of them had actually uttered inciting words themselves, the question was whether, under the doctrine of joint enterprise, the speeches made by D1, D4, D5, D6 and D7 could be used against them^[97].

36.  Given his findings relating to the cordoning off of Tim Mei Avenue (see para 29(b) supra), the judge found that the prosecution case had partly failed, insofar as it alleged any incitements aimed at causing public nuisance at Tim Mei Avenue^[98], as opposed to in the neighbourhood of Tim Mei Avenue.  The judge also reminded himself that the incitees in Charge 2 and 3 were the “persons present at Tim Mei Avenue” but not other persons, such as those watching the incitements on live broadcast^[99].

37.  The judge set out in detail the statements made by the relevant defendants on the main stage (which he described as a “command centre” for giving directions to people in the Occupy Central Movement)^[100]. He explained why those statements, made either individually or jointly, constituted Charges 2 and/or 3, resulting in obstructions to public places and roads in the neighbourhood of Tim Mei Avenue^[101], bearing in mind also the advocated purpose of the Occupy Central Movement^[102].

38.  The judge further reminded himself of the requisite mens rea applicable tothe offences of incitement to commit public nuisance and incitement to incite public nuisance^[103]. He considered that what was said by one defendant in the presence of another defendant might constitute the means of knowledge available to the latter^[104], and hence a common intention; whilst also finding, on the basis of their individual liability, that D1, D4, D5 and D7 each had the requisite mens rea to commit Charge 2, and D5, D6 and D7 each had the requisite mens rea to commit Charge 3. 

(a)  Regarding the mens rea of D1 and D4 in respect of the commission of Charge 2, the judge found, using identical language, that^[105]:

“From the evidence, I am sure that when [D1/D4] made the incitement in Exhibit P20, [he/she] intended that the incitees, i.e. the people at Tim Mei Avenue would do the act incited by [him/her], i.e. obstructing public places and roads in the neighbourhood of Tim Mei Avenue, with the mens rea of public nuisance, i.e. the incitees knew, or ought to have known (because of the means of knowledge were available to [him/her]) the consequence of what they did. In this case the incitees were the people participating in the public assembly at Tim Mei Avenue, and hence, they must be aware of what was going on at the time of the incitement and what the effect of an indefinite obstruction of the roads in the neighbourhood of Tim Mei Avenue would be if they acted as incited.”

The judge made the same findings against D5 and D7, again using very similar language^[106].

(b)  Regarding the mens rea of D5 and D6 in respect of the commission of Charge 3, the judge found, at the time of the incitements, that D5 “intended or believed”, whilst D6 “intended”^[107]:

“the incitees (the persons at Tim Mei Avenue) would incite other persons (the friends of the incitees) to do the act incited, i.e. to cause a nuisance to the public by unlawfully obstructing public places and roads in the neighbourhood of Tim Mei Avenue and that the incitees (the people at Tim Mei Avenue) would do the act with the mens rea requirement for incitement, i.e. an intention to incite.”

The judge said that D7 had the requisite mens rea to commit Charge 3; as, indeed, he also found in respect of D5^[108].

39.  With regard to D5, having noted his claim that civil disobedience was a “fight in relays”^[109], the judge found that it was his intention that the Occupy Central Movement should last as long as possible^[110]. As a matter of credibility, the judge also noted that, contrary to his claimed intention to be arrested after a few days of the protest, D5 did not in fact surrender to the police until 3 December 2014^[111]. The judge further found that Exhibits D2-9, D2-10 and D2-11 did not assist D5 (or the other applicants in respect of Charges 2 and 3); noting, in particular, that D5 had given no evidence to suggest he was aware of the contents of Exhibit D2-9^[112].

40.  In respect of D6, the judge found that he was inciting an occupation for a prolonged period, as opposed to a “limited period of time”, given that the purpose of the Occupy Central Movement was to make the then Chief Executive give an explanation of matters relating to the 831 Decision^[113]. The judge also found that, while Tim Mei Avenue was already full, the fact that D6 incited people to “over-cram” the nearby carriageways was tantamount to inciting them, unreasonably and unlawfully, to occupy (and continue occupying) the areas beyond the ambit of Tim Mei Avenue^[114].

41.  The judge made a finding, which was not merely relevant to Charges 2 and 3, but to all other charges as well, that the computer certificates (Exhibits P145-147) showed that “over-cramming” the neighbourhood of Tim Mei Avenue (as well as Fenwick Pier Street and the six carriageways of Harcourt Road) would result in the suffering of common injury by common members of the public^[115].

42.  In the result:

(a)  In respect of Charge 2, the judge convicted D1, D2, D4, D5, D6 and D7 on the basis of joint enterprise (and D1, D4, D5 and D7 on the basis of the utterances made by each of them individually)^[116]; but acquitted D3 since he was not present when the others made the incitements to commit public nuisance^[117].

(b)  In respect of Charge 3, the judge convicted D4, D5, D6 and D7 on the basis of joint enterprise (and D5, D6 and D7 on the basis of the utterances made by each of them individually)^[118]; but acquitted D1, D2 and D3, since they were not present when the others made the incitements to incite public nuisance^[119].

E.5.  Charges 4 and 5

43.  The judge found that the statements made by D8 were directed at those present in Fenwick Pier Street, and his voice could be heard by those within its audibility range^[120]. He considered that D8’s intention was to cause the carriageway of Fenwick Pier Street to be occupied for an indefinite period of time and that such intention was made known to his audience^[121]. The judge held that what D8 said amounted to the incitements in question.

44.  The judge further found that D8’s reaction to the appearance of PW5’s fire engine amounted to an unreasonable use of Fenwick Pier Street.  He said, inter alia[122]:

“…it would be wholly unreasonable for D8 to require the firemen on PW5’s fire engine on call to a ‘Multiple Casualties Incident’ with its siren on to explain to the crowd/marshals why they had to travel pass Fenwick Pier Street and seek permission from them to do so.”

45.  The judge held that not only would the resulting obstruction to traffic and inconvenience to the public be so serious that it would exceed the bounds of reasonableness^[123], it was also the intention of D8 that those he incited would act upon his incitements^[124]. In the result, the judge convicted D8 of both Charges 4 and 5.

E.6.  Charge 6

46.  The judge found that D9 had incited those in Harcourt Road to occupy the road by his speeches, which were heard by those within the audibility range of his loudspeaker^[125]; and that both D9 and his target audience knew what obstruction would be caused by their conduct^[126].

47.  The judge thought that the occupation incited by D9 was a tactic to “counter-besiege” the police for an indefinite period^[127]. Such a tactic would inevitably result in obstruction of more public places and roads^[128], on an extensive scale^[129]. At the time of the incitement, D9 knew that crowds were blocking the westbound and eastbound traffic of Harcourt Road; while there were over 10,000 protestors at Tim Mei Avenue^[130].

48.  The judge pointed out that the so-called “exclusion plan” of the police was “a necessary and proportionate measure” to deal with a threat made by D1 to occupy the CGO.  It would have been irresponsible of the police to have taken the threat lightly.  Accordingly, it was “reasonable and lawful” for the police to prohibit the protestors’ access to the CGO^[131]. 

49.  In the result, the judge convicted D9 of Charge 6.

F.  The Reasons for Sentence

50.  As noted earlier, the sentencing appeals now only concern D1 and D8.  D1 was of good character: D8 was not.

51.  The judge was referred to several cases involving public nuisance, including the magistracy appeal decisions of HKSAR v Pearce [2006] 3 HKC 105, HKSAR v Pearce [2009] 5 HKLRD 1 and HKSAR v Chow Pit Keung and Ors (Unrep., HCMA 610/2009, 17 March 2010); and the English Court of Appeal decision of R v Roberts (Richard) & Ors [2019] 1 Cr App R (S) 48.  Nevertheless, he found that the seriousness of the instant case far exceeded that of any of the cited cases^[132].

52.  The judge said he bore in mind the peaceful and non-violent nature of the offences, as well as the defendants’ underlying motive for committing the same, which was not one of greed, lust, anger or monetary reward[133]. On the other hand, he noted that neither defendant had expressed regret for the inconvenience and sufferings caused to other members of the public^[134].

53.  In respect of the conspiracy entered into by the Trio, the judge said that whilst protestors should behave with a sense of proportion and not cause excessive damage or inconvenience, the Trio either lacked a sense of proportion or adopted a wholly wrong test or yardstick to make such an assessment^[135], noting in particular that D2 did not consider the matter of proportionality until 18 November 2014^[136].

54.  In respect of the incitement charges, the judge considered that if the incitements were acted upon by the incitees, they would inevitably result in excessive damage or inconvenience; and that the resulting public nuisance did not fall within the parameters of civil disobedience^[137].

55.  The judge found that the occupation of Fenwick Pier Street, which had been incited by D8, was serious and was intended to last for an indefinite period of time.  As it turned out, the road continued to be occupied by a huge number of protestors and was not cleared until 11 December 2014^[138].

56.  In view of the obviously extensive and necessary investigation that was required into the case, the judge was of the view that there was no unreasonable delay in prosecution; and that any delay which may have resulted was acceptable^[139].

57.  The judge therefore adopted the following starting points:

(a)  Charge 1 – 18 months’ imprisonment;

(b)  Charge 2 – 9 months’ imprisonment;

(c)  Charge 3 – 9 months’ imprisonment (this is not of relevance for present purposes);

(d)  Charge 4 – 8 months’ imprisonment;

(e)  Charge 5 – 8 months’ imprisonment; and

(f)  Charge 6 – 9 months’ imprisonment (this is not of relevance for present purposes).

58.  The only basis upon which the judge was prepared to reduce the sentences of all defendants, save for D8, was for what he described as their “positive good character”.  For that reason alone, he gave D1 a two‑month discount in respect of the starting point on Charge 1, and a one‑month discount from the starting point of Charge 2.

59.  Accordingly, the judge imposed a sentence of 16 months’ imprisonment on D1 in respect of Charge 1, and 8 months’ imprisonment for Charge 2, before ordering both sentences to run concurrently with each other, thus making an overall sentence of 16 months’ imprisonment.

60.  In respect of D8, the judge imposed sentences of 8 months’ imprisonment for both Charges 4 and 5, ordering the two sentences to run concurrently with each other, thus making an overall sentence of 8 months’ imprisonment.

G.  Grounds of appeal

G.1.  Grounds of appeal against conviction (generally)

61.  We now turn to the grounds of appeal, of which there are a total of 42 substantive grounds of appeal against conviction alone, leaving aside those grounds which address sentence.  It is true that some of the grounds are common to various applicants, although they have been pleaded in rather different ways, with sometimes very different emphasis.  Given the multitude of grounds of appeal and the different ways that individual applicants have advanced, in some cases, similar grounds on paper, we have endeavoured to summarise them.  That summary is not exhaustive; however, we have tried to set out the essence of the pleaded grounds, conscious that some of the grounds were not argued orally by an individual applicant but the arguments of others were adopted on that particular ground; and some of the grounds were later elaborated upon in oral submissions, with some applicants adopting the arguments of other applicants, while others developed their own arguments in respect of similar grounds.  This judgment would be extremely lengthy and repetitive if we were to set out every ground advanced by each applicant seriatim both in writing and orally.  As will become clear, when we discuss the various grounds, we have chosen, like Mr Tam, to address the main, or key, aspects of the accumulated submissions.

G.2.  Grounds of appeal against conviction (individually)

G.2.1.  D1’s grounds of appeal against conviction (Grounds 1-8)

62.  Mr Eric Cheung, with him Mr Randy Shek and Mr Jason Kung, all of whom acted for D1 at the appeal before us but not the trial, criticised the judge for wrongly holding that Charges 1 and 2 had satisfied the requirements of legal certainty, and for failing to apply the proportionality test to the offences or considering the “chilling effect” that might be caused by the premature arrest or prosecution of a person planning or advocating a peaceful assembly (D1’s Ground 1).

63.  Mr Cheung argued that the efforts of the three alleged co-conspirators were insufficient to form a conspiracy to commit, as opposed to incitement to commit, public nuisance (D1’s Ground 2).

64.  It was further contended that the evidence was insufficient to establish a causative link between the agreement as planned by D1, D2 and D3 and the causing of a public nuisance (D1’s Ground 3).

65.  Mr Cheung criticised as wrong in law the judge’s finding that the modified agreement reached by the Trio on 28 September 2014 amounted to a conspiratorial agreement that corresponded to the one reached on 18 September 2014 (D1’s Ground 4).  His alternative, or fall-back, position was that the judge had wrongly allowed two conspiracies to proceed under the umbrella of a single charge (D1’s Ground 5).

66.  Mr Cheung complained that the judge had failed to give sufficient regard to the real objective of the campaign when deciding whether D1 had the necessary mens rea for committing Charge 1 (D1’s Ground 6).

67.  He emphasised that the persons who were incited in Charge 2 were confined to those who were already present and obstructing at Tim Mei Avenue, which obstruction was judged to be insufficient to constitute a public nuisance; as evidenced by the acquittal of D1 on Charge 3.  Accordingly, he argued that the most that those who were incited in Charge 2 could do in acting upon D1’s incitement was to maintain the status quo by remaining where they were and continuing to obstruct at and in the neighbourhood of Tim Mei Avenue, which similarly should not have constituted a public nuisance (D1’s Ground 7).

68.  Finally, Mr Cheung submitted that there was insufficient evidence to show that the occupation was intended to last a prolonged or indefinite period of time.  He argued that political chants such as “Over‑cram Admiralty” and “Over-cram Central” were rhetorical exhortations or flights of fancy, which should not be interpreted too literally (D1’s Ground 8).

G.2.2.  D2’s and D3’s grounds of appeal against conviction (Grounds 1-4)

69.  Mr Steven Kwan, with him Mr Albert Wong, who acted for D2 and D3 at trial and, together with Ms Zoe McCoy, before us on appeal, argued that there were flaws in the judge’s analysis when he convicted D2 and D3.  It was contended that the judge was wrong to find it unreasonable for the Trio to plan an occupation “even for just a few days” and to reject D2’s forecast, based on the history of the Anti-National Education protests in 2012, that the government would at some stage of the occupation accede to the wishes of the demonstrators (D2 and D3’s Ground 1). 

70.  It was also submitted that insufficient consideration had been given to D2’s evidence that the objective of the Occupy Central Movement was only to cause sufficient disruption in order to arouse public attention (D2 and D3’s Ground 2).

71.  Mr Kwan further argued that the judge was wrong to accept the prosecution’s contention that Tim Mei Avenue and Harcourt Road in Admiralty were public places and roads in the neighbourhood of Central^[140]. This erroneous finding of the geographical location of the charges led to the unsafe convictions of the incitement charges against D2 and D3 (D2 and D3’s Ground 3).

72.  Since D2’s final ground of appeal is akin to Ground 8 of D1’s appeal, it is not therefore repeated here (D2 and D3’s Ground 4).

G.2.3.  D4’s grounds of appeal against conviction (Grounds 1-3)

73.  Mr Ching Y Wong SC, with him Ms Fiona Nam and Ms Adgie Chan, who acted for D4 both at trial and this appeal, argued that Charges 2 and 3 lacked concise, accurate and informative particulars as to the meaning of “in the neighbourhood of Tim Mei Avenue” and, accordingly, the defence was not properly informed as to what the prosecution case was (D4’s Ground 1).

74.  He further argued^[141] that the judge had failed to make sufficient findings on the fault elements of incitement; in particular, whether those doing the inciting and those being incited had the respective knowledge that the commission of the incited act would be tantamount to committing a public nuisance; or, at the risk of oversimplifying the argument, whether the incitees knew the consequences, and whether the incitors knew that they knew the consequences (D4’s Ground 2).

75.  Mr Wong’s final ground of appeal was that the convictions were unsafe and unsatisfactory (D4’s Ground 3).

G.2.4.  D5’s grounds of appeal against conviction (Grounds 1-6)

76.  Mr Robert Pang SC, with him Mr Timothy Lam, who acted for D5 both at trial and this appeal, argued that the judge had wrongly found that an unreasonable obstruction had been caused.  He submitted that the reasonableness of the obstruction should be determined on the basis that the more important the issue, the more it could be expected that there should be “give-and-take” within the community (D5’s Ground 1).  He contended that an indefinite period of occupation could also have been a short one, which might not necessarily have resulted in a public nuisance (D5’s Ground 2).

77.  The judge was further criticised for appearing to accept D5’s intention to have himself arrested following his surrender to the police, but not ultimately acting on his own words^[142] (D5’s Ground 3). 

78.  It was further argued that the judge had failed sufficiently to consider Exhibits D2-9, D2-10 and D2-11, which suggested that the Occupy Central Movement had a short intended duration, and had been embraced by a large number of the public in Hong Kong; accordingly, he erroneously determined that encouraging people to take part in the movement was sufficient to amount to an incitement to commit or incite a public nuisance (D5’s Ground 4).  By the same token, the words uttered by D5 might not have been sufficient to show that he had committed the actus reus with the requisite mens rea (D5’s Ground 5).

79.  Finally, it was argued that the offences in Charges 2 and 3 lacked sufficient certainty as to the legal elements to be proved (D5’s Ground 6).  This argument is akin to D1’s Ground 1 and D4’s Ground 2.

G.2.5.  D6’s grounds of appeal against conviction (Grounds 1-6)

80.  Mr Hectar Pun SC, with him Mr Anson Wong, who acted for D6 both at the trial and this appeal, challenged the 13 February 2018 ruling of the judge that the common law offence of incitement to incite is applicable in Hong Kong and constitutional (D6’s Ground 1).

81.  He also argued that the judge was wrong to conclude that the obstruction in question was not warranted by law, when the holding of, and participating in, a public meeting at Tim Mei Avenue from 26 to 27 September 2014 had been lawful (D6’s Ground 2).

82.  Since there was at least a reasonable doubt that those incited might only remain at Tim Mei Avenue for a limited period of time, they may not have committed a public nuisance or incited another to commit a public nuisance (D6’s Ground 3).

83.  Mr Pun argued, in similar vein to D6’s Ground 2, but with more focus on the application of the reasonableness test, that the obstruction did not exceed the bounds of reasonableness and that the public meeting was a peaceful one, which did not constitute a public nuisance (D6’s Ground 4).

84.  Akin to D4’s Ground 2 and D5’s Ground 6 supra, Mr Pun argued that the evidence was insufficient to establish the requisite mens rea by the incitors and incitees (D6’s Ground 5).

85.  Finally, it was submitted that the judge had erred in finding that a joint enterprise involving D6 had been established (D6’s Ground 6).

G.2.6.  D7’s grounds of appeal against conviction (Grounds 1-6)

86.  Mr Philip Dykes SC, with him Mr Jeffrey Tam, who acted for D7 both at trial and this appeal, submitted that the common law offence of public nuisance, in the context of civil disobedience, did not meet the requirements of legal certainty.  In particular, the offence was not adequately accessible, and was contrary to Articles 27, 28 and 39 of the Basic Law^[143] (D7’s Ground 1).

87.  It was contended that the judge was wrong in the 13 February 2018 ruling to rely on what were said to be the obiter remarks of the Court of Appeal of England and Wales in R v Mohammed Sirat (1986) 83 Cr App R 41, in support of his finding that the offence of incitement to incite existed at common law (D7’s Ground 2).

88.  Mr Dykes submitted that the correct approach to the mens rea for an offence of incitement to incite, if it existed, should be that the defendant must intend the commission of the principal offence (D7’s Ground 3).  In support of this ground, he relied on the recommendations in the report of the Law Commission for English and Wales (Law Com No. 300/2006) entitled Inchoate Liability for Assisting and Encouraging Crime.

89.  Further to D7’s Ground 1, Mr Dykes emphasised that public nuisance required proof of a common injury to the public.  However, this could only be ascertained after the commission of the act concerned (D7’s Ground 4).

90.  Mr Dykes complained that the judge had made numerous erroneous findings of fact (D7’s Ground 5), which may be identified as:

(a)  His adoption and application of the wrong test, to the effect that D7 had the intention or belief that the incitees would act upon the incited act with the mens rea of public nuisance.

(b)  His finding that the jussive subjunctive in the statement “Let’s continue to occupy the roads together”, uttered by D7, was directed at the persons present in Tim Mei Avenue and Harcourt Road, rather than an appeal to the general public.

(c)  His conclusion that the audibility of the PA system on the main stage could reach everyone at Tim Mei Avenue.

(d)  His finding that certain areas of Admiralty, Central and Wanchai fell within the meaning of “the neighbourhood of Tim Mei Avenue”.

(e)  His holding that the incited act was intended to last for an indefinite period of time.

(f)  His holding that it was not impossible to commit Charges 2 and 3, notwithstanding that some areas had been cordoned off by the police.

(g)  His finding that the obstruction caused in a peaceful demonstration (as in the present case) was sufficient to satisfy the element of obstruction in the offence of public nuisance.

(h)  His use of the fact that some bus services were diverted or suspended during the occupation period as evidence of common injury.

(i)  His failure to determine what amounts to “a section of the public”, in the context of a peaceful demonstration.

(j)  His holding that the cordoning off of certain areas and the use of tear gas by the police were irrelevant factors, when these events may have prompted more people to join the event.

91.  It was also submitted that the judge was inconsistent in his factual findings as to why obstruction to the traffic was caused by the incitements of D7 and why such obstruction, if limited to part of the carriageway, would be more acceptable to the public.  

92.  Finally, it was contended that inappropriate charges were brought by the prosecution, yet accepted by the judge, who should have stayed the common law charges (D7’s Ground 6).  This was in fact the ground particularly addressed by Mr Dykes in his oral arguments before this Court.  It was argued that there was a perfectly proper statutory offence, namely section 4(24) of the Summary Offences Ordinance, Cap 227, which would have catered for the facts of the present case, without resorting to the inappropriate common law offences of inciting to commit or to incite public nuisance.

G.2.7.  D8’s grounds of appeal against conviction (Grounds 1-3)

93.  Mr Lawrence Lok SC, who acted for D8 at trial and now appears with Ms Naomi Chan at this appeal, submitted that the judge erred in the 13 February 2018 ruling by finding that “incitement to incite” was a valid, constitutional charge.  He contended that Charge 5 was superfluous, since the allegation had been subsumed in Charge 4 (D8’s Ground 1).

94.  He argued that the prosecution had failed to establish that, in exercising his constitutional rights guaranteed under Articles 27 and 39 of the Basic Law^[144], D8 had done so without lawful excuse in the sense that what he did was an unreasonable, intolerable and substantial one to the public in terms of extent, duration, time, place and purpose (D8’s Ground 2).

95.  Mr Lok also argued that the judge was wrong to find that the traffic inconvenience to Fenwick Pier Street was substantial, bearing in mind that D8 had never told people to sit there for a long time, nor had he caused anyone to block the way of the fire engine (D8’s Ground 3).

G.2.8.  D9’s grounds of appeal against conviction (Grounds 1-6)

96.  Mr Edwin Choy SC, with him Ms Chow Hang Tung, counsel for D9 both at trial and this appeal, submitted that the common law offences of causing public nuisance and incitement to cause public nuisance were both unconstitutional, since they infringed the constitutional rights to freedom of opinion, expression, speech, assembly and demonstration guaranteed under Articles 27 and 39 of the Basic Law^[145], and Articles 16 and 17 of the Bill of Rights^[146] contained in the Hong Kong Bill of Rights Ordinance, Cap 383 (D9’s Ground 1).  Accordingly, it was also unconstitutional to charge D9 with such offences (D9’s Grounds 2 and 3).

97.  Mr Choy further echoed Mr Dykes’ argument that the judge had been wrong not to hold that the use of the common law offences was improper when there were other appropriate statutory offences which could have been brought instead (D9’s Ground 3).

98.  Mr Choy submitted that the conviction of D8 was the result of the lack of independent applications of the reasonableness test (propounded in Yeung May Wan v HKSAR) and the proportionality test[147] (D9’s Ground 4).  It was also contended that the judge (i) failed to note that the reasonable test and the proportionality test involved an assessment of the acts of different actors (the applicants versus the Government); (ii) wrongly held that it was reasonable and lawful for the police to implement the “exclusion plan”; and (iii) wrongly disregarded the concept of civil disobedience (D9’s Ground 5).

99.  Finally, Mr Choy argued that the judge had made a number of erroneous findings of fact against D9 in respect of the occupation of six carriageways of Harcourt Road (D9’s Ground 6), namely:

(a)  D9 had incited the persons at Harcourt Road to cause the occupation there; and he and those he incited knew, if the incited act was carried out, what obstruction would be caused to the traffic.

(b)  It was the intention of D9 to use the occupation as a measure to counter-besiege the police, and to cause such occupation for an indefinite period of time, or until the Occupy Central Movement came to an end.

(c)  The occupation was of an extensive scale and would result in the suffering of common injury by common members of the public.

(d)  Those incited had knowledge, or ought to have known, of the condition of Harcourt Road at the material time, and the consequences of an indefinite obstruction there.

G.3.  Grounds of appeal against sentence (D1 and D8 only)

100.  Both Mr Shek, for D1 in respect of his sentence appeal, and Mr Lok, for D8, argued that, when passing sentence, the judge had failed sufficiently to consider the non-violent or peaceful nature of the occupation.  Furthermore, the judge had not given sufficient consideration to the fact that the offences were committed by the applicants in the lawful exercise of their constitutional rights.  Mr Shek submitted, inter alia, that whilst D1 had openly claimed to leave the occupation by 28 October 2014 and lost control of the movement at some stage, the judge nevertheless wrongly sentenced him on the basis that he was responsible for the entire occupation up until 2 December 2014.

101.  By way of a Notice of Motion dated 10 December 2019, Mr Shek sought leave to adduce a 4^th Affidavit of D1, affirmed on 29 November 2019, and certain exhibits attached thereto.  By this affidavit, D1 maintained that, in early October 2014, he had expressed his regret to the public for the inconvenience caused by the Occupy Central Movement; but nevertheless, it did not occur to him that the expression of such regret would be given consideration by the judge in sentencing.  Accordingly, he had not sought to adduce until this appeal some open source video footage showing his earlier expressions of regret.

102.  Mr Lok submitted that the judge was wrong to find that where the incitements by D8 were acted upon by those incited, very serious and indefinite obstruction would occur.

H.  Respondent’s submissions

H.1.  Respondent’s submissions on conviction

103.  Mr William Tam SC, Acting Director of Public Prosecutions, with him Mr Ira Lui and Mr Derek Lau, for the respondent, submitted, in respect of D7’s Ground 6 and D9’s Ground 3, that absent any suggestion that the applicants were deprived of their right to a fair trial, the Court should be slow to interfere with the prosecuting authority’s decision to prefer the charges it saw fit^[148].

104.  On the constitutional challenges against the offence of public nuisance, Mr Tam submitted that the judge was correct in applying Rimmington and Yeung May Wan v HKSAR in the context of a peaceful demonstration; and in consequence, holding that when a reasonable balance was struck between the competing rights and interests of the individuals, the offence did not amount to a disproportionate restriction on their fundamental rights.  It was also submitted that the judge had been right to decide that the offence of ‘incitement to incite’ existed at common law, both in the United Kingdom and in Hong Kong; and correctly identified the legal elements to be proved for the incitement offences in question^[149].  It was submitted in respect of D4’s Ground 2 that the judge had properly found the elements of the incitement charges (save those on which D1, D2 and D3 were acquitted) to be established^[150].

105.  Despite some overlap in the grounds of appeal^[151], it was submitted that they essentially came down to the same argument, that the judge had failed to apply the proportionality principle and the reasonableness test to the facts of the case.  However, Mr Tam contended that the judge had properly carried out a balancing exercise in reaching the conclusion he did. In support of this contention, he relied on the decision of the Queen’s Bench Division of England and Wales in DPP v Ziegler [2019] 2 WLR 1451.

106.  In respect of D1’s Grounds 2, 3, 4, 5 and 6, Mr Tam submitted that in light of the estimated number of participants and the fact that 3 October was a working day, the Occupy Central Movement, if carried out as planned, would inevitably result in public nuisance^[152]. He emphasised that the original and modified conspiracy agreements, as described by the judge, were very similar and shared one key objective, namely, the intended occupation of the public places and roads in or in the neighbourhood of Central; accordingly, there could be no uncertainty or room for misunderstanding regarding the basis of Charge 1^[153].

107.  He argued in respect of D1’s Grounds 7 and 8, and D2 and D3’s Ground 4, that whoever the applicants were addressing their words to, the intended effect of such words had to be considered in the circumstances in which they were uttered by the applicants, as well as their knowledge and common intention.  The judge’s findings could not be impugned in this regard^[154].

108.  In respect of D4’s Ground 1, Mr Tam submitted that the meaning of “in the neighbourhood of Tim Mei Avenue” in Charges 2 and 3 would be obvious from Exhibit P20 and should be understood in the context of a continuous gathering at Tim Mei Avenue at the time^[155].

109.  Of D5’s Ground 2, it was said that the likely duration of the occupation could be discerned from the scale of the occupation which D5 was inciting; whilst of D5’s Ground 3, Mr Tam submitted that whether D5 had a genuine intention to surrender to the police at the time of the incitement could properly be inferred from his later conduct^[156].

110.  In respect of D5’s Ground 4, Mr Tam argued that since D5 did not testify at trial, there was no evidence to show that he was aware of the contents of the defence exhibits adduced by D2^[157].  In any event, so far as D5’s Ground 5 was concerned, the judge’s findings as to guilt did not depend on any obstruction eventually caused by the incitees, but on D5’s intention at the time he incited them^[158].

111.  In respect of D6’s Grounds 2, 3 and 5, Mr Tam submitted that the suggested loopholes in D6’s convictions had to be seen in the light of the judge’s other findings of fact which led to his conclusion that D6 was intending a prolonged occupation that was unreasonable and not warranted by law^[159]. When the events involving D6 on the main stage were considered as a whole, the criticism levelled at the judge’s finding under D6’s Ground 6 was unwarranted^[160].

112.  With regard to the criticisms in D7’s Ground 5 of the judge’s factual findings against D7, Mr Tam submitted that the judge had carefully considered the target audience who would be hearing D7’s speeches, and held that the incitements were heard only by those “within the audibility range” of the PA system, as opposed to everyone.  He argued that the cordoning off of Tim Mei Avenue carriageway by the police was irrelevant, since D7 was inciting an occupation beyond the ambit of Tim Mei Avenue.  The firing of tear gas went to the effect of the incitement, which was not an element of the offence, and was thereby also irrelevant^[161].

113.  So far as the criticisms in D9’s Ground 6 of the judge’s factual findings against D9 were concerned, Mr Tam submitted that D9 elected not to give evidence so as to provide a basis for contradicting the otherwise unimpeachable findings that his unambiguous speeches were audible within the audibility range of his loudspeaker; and that they were clearly directed at those in Harcourt Road in order to ensure that they remained on the carriageways as long as the Occupy Central Movement was in progress.  Mr Tam also submitted that, for the offence of incitement, it was unnecessary to prove that the incitees in fact acted upon the incitement^[162].

114.  In his oral response before this Court, Mr Tam sensibly approached the accumulated grounds of appeal of the applicants by identifying, and endeavouring to answer, various “key issues” which were common to them.  We found his structured approach to these issues and, indeed, his lucid submissions, extremely helpful; and, as will be seen, we have adopted an expanded version of the same approach in resolving this appeal. 

H.2.  Respondent’s submissions on sentence

115.  Mr Tam submitted that the judge had addressed many of the issues now raised in his Reasons for Sentence.  The essence of his response was that those who had been found to have unreasonably impinged on the rights of others could not then use the exercise of their constitutional rights as mitigation of their conduct.  He contended that the judge had rightly considered the seriousness of the instant offences in the context of civil disobedience, and was in fact lenient in affording a two-month reduction of the overall sentence of D1 for what he described as “positive good character”. 

116.  Mr Tam objected to D1’s application to adduce fresh evidence.  He submitted that neither of the sentences received by D1 and D8 was manifestly excessive or wrong in principle.

I.  Discussion

I.1.  Discussion as to conviction

117.  There are, as we have said, a total of 42 substantive grounds of appeal against conviction.  Given that there is a large measure of overlap between the grounds of appeal of the various applicants dealing with matters of law, whose arguments have been either adopted or adapted, explicitly or implicitly, by other applicants, it will be convenient if we identify the essential grounds being put forward and endeavour to address them.  We can group the arguments into six main issues.

I.1.1.  The first main issue

118.  The first main issue concerns the propriety of the conspiracy charge (Charge 1).  The judge’s determination that although there was an agreement between the Trio in March 2013, the criminal conspiracy to commit public nuisance formed on or about 18 September 2014, which was then modified on 28 September 2014, has led to the complaint that there were in effect two different conspiracies involved in a single charge being tried.

119.  We regard this argument as misconceived.  In terms of form, there was nothing ambiguous, duplicitous or uncertain about Charge 1.  It alleged a single, global conspiracy between March 2013 and 2 December 2014 by the Trio and with others to cause nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central.  In terms of substance or proof, the judge found that the conspiracy was not in fact effected until on or about 18 September 2014, and it then continued through until 2 December 2014[163].  The question of when the conspiracy was formed was a matter of fact for the judge, as the hypothetical jury, to determine.  It did not mean that there were two (or more) conspiracies.

120.  As for the fact that instead of occupying Chater Road in Central, the conspiracy began with an occupation of Tim Mei Avenue, which is plainly in or in the neighbourhood of Central, we do not regard this as anything other than an implementation of the original conspiracy. Certainly, that was what the Trio intended it to be, and that is what it clearly was.  As the judge put it, “the original plan was only modified, but not abandoned, by the Trio when they announced the launch of Occupy Central at 1:36 am on 28 September 2014”[164].

121.  A case we have found persuasive in its reasoning, and useful on its facts, is the decision of the Supreme Court of New South Wales in R v Saffron (1988) 17 NSWLR 395.  The applicant and another man (Anderson) were alleged to have defrauded the Commonwealth of Australia of income tax by taking cash from the receipts of five restaurant and nightclub businesses, and by keeping false books of account.  The agreement was allegedly made when the conspirators became interested in the first business, an establishment known as the “Venus Room”, and the agreement was then implemented in respect of that business and, subsequently, four others.

122.  The applicant’s argument was that the conspiracy charged was one which, by virtue of the dates averred in the charge, could only have related to the Venus Room business and its profits, and that the extension or continuation of the conspiracy in respect of the other four businesses could only have been the result of further agreements to pursue a similar tax evasion system in respect of each business.  It was suggested that the evidence was as consistent with the existence of separate conspiracies as with one conspiracy.  The Court of Appeal’s answer was[165]:

“…the question was properly left to the jury. It is not merely that the object of the conspirators throughout was to defraud the Commonwealth of tax. Thus if there were one charge such as the present formal charge of conspiracy, and the evidence showed the arrangement in the context of the Venus Room, and another arrangement some eight or nine years later to invest money won at the races in a mortgage, using pseudonyms instead of real names, and defrauding the Commonwealth by not returning the true income from the investment in the relevant tax returns, it would not be enough that the parties to the agreement were the same and that the objects were the same. However, in the present case there were throughout not only the same object and the same parties; there were the same scheme, the same general class of business and income, the same bookkeeper or bookkeepers implementing the conspiracy at the same office, and a substantial inter-mixing of the tax evasion activities in respect of all the businesses … coupled with an absence of further discussions to bring the new businesses within the scheme, all of which justified an inference that Anderson and Saffron assumed, and it was the fact, that the scheme originating in the context of the Venus Room was not limited to that business but was to be applied without further agreement to other businesses as they acquired interests in them.”

123.  Similarly, in the present case, the judge found that the conspiracy as charged was entered into on or about 18 September 2014, and the agreement was, as particularised, “to cause a nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central”.  Chater Road was not mentioned in the charge, nor was Tim Mei Avenue.  However, once one accepts that Tim Mei Avenue is in the neighbourhood of Central, which it manifestly is, then the objective of conspiring to cause a public nuisance in or in the neighbourhood of Central was still the same: all that happened was that the actual obstruction and resulting public nuisance was caused in one road rather than another road in or in the neighbourhood of Central.

124.  As Saffron makes clear, whether there is one or more conspiracies is a matter for the jury.  Here the judge, as jury, made specific findings on this issue[166]:

“When D1 announced the launch of Occupy Central, he said, amongst other things “I am going to make a very important announcement here, which is a – an announcement that everybody has long been waiting for.  Does everybody know what this announcement is?  It is announced here and now that the ‘Occupy Central’ formally begins. ‘Occupy Central’ formally begins”.  In my judgment, what D1 meant by “an announcement that everybody has long been waiting for” must be the OCLP that the Trio had been planning since March 2013 and the one they had planned to start on 1 October 2014.  Had the Trio intended to abandon the OCLP and start another movement, D1 would not have said what he said in the announcement at 1:36 am.  Furthermore, in a press interview held immediately after the announcement, D1 was asked if the launch of Occupy Central at Tim Mei Avenue involved any change in the plan, D1 said, amongst other things, that “Actually, the impact is not really that big, actually it concerns just some technical arrangement, for example, the management of manpower, the management of the sites, this is because our original plan was based on a certain point in Central, all the planned sketches are ready.  And now we are going to make the changes, but I think this concerns only technical issues”.  The reasonable inference to be drawn from what D1 said in Exhibit P124 is that the Trio did not see the announcement at 1:36 am as the launching of a different movement but that the launching of the movement that they had been planning was put forward from 1 October 2014 to 28 September 2014.”

125.  The judge then went on to deal with D2’s evidence that there were four major areas of difference between the movement the Trio had planned to commence on 1 October and the one they in fact announced to begin at 1:36 am on 28 September 2014; namely, as to (i) theme; (ii) management and leadership; (iii) organisational methods; and (iv) composition of participants.  Suffice it to say, the judge gave cogent reasons why he did not accept there were any real differences[167].

126.  In our view, the judge carefully and fully addressed this issue, which was a matter for him to determine, and found that there was only ever one conspiracy, which commenced on or about 18 September 2014.  We agree.

I.1.2.  The second main issue

127.  The second main issue is whether there were sufficient details agreed upon by the conspirators at the time of the so-called “modified agreement” to constitute a conspiracy to cause a public nuisance.  This question also engages an issue common to the incitement charges as well, which is whether an obstruction which is unreasonable, and therefore unlawful, can be agreed upon or incited beforehand.  It is argued that an unreasonable obstruction can only be assessed afterwards, but not in advance.

128.  Mr Cheung placed considerable reliance on the judgment of the English Court of Appeal in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100, where the claimants, who were involved in “fracking” sought, inter alia, injunctions on a quia timet basis to restrain potentially unlawful acts of protest before they occurred.  The Court saw certain problems with the orders made by the judge, amongst which were:

“Fourthly, the concept of “unreasonably” obstructing the highway is not susceptible of advance definition. It is, of course, the law that for an obstruction of the highways to be unlawful it must be an unreasonable obstruction (see Director of Public Prosecutions v Jones (Margaret) [1992] 2 AC 240), but that is a question of fact and degree that can be assessed in an actual situation and not in advance. A person faced with such an injunction may well be chilled into not obstructing the highway at all.”

With respect to the Court, we query why the reasonableness or unreasonableness of an anticipated obstruction of public roads by thousands of people in, or in the neighbourhood of, an area such as Central Hong Kong cannot, in appropriate circumstances, be assessed in advance.  The case before us would suggest that it plainly can be, and was. 

129.  One must remember that the gestation period of the Occupy Central Movement had been some 18 months before the announcement of its commencement was actually made.  During that period, the preliminary stages of deliberation, authorisation and negotiation had been completed.  The scale of the occupation was anticipated to be between 3,000 and 10,000 people but, more importantly, the Trio and all of the other applicants could see with their own eyes the sheer scale and success of the occupation of Tim Mei Avenue, well before the announcement to “over‑cram” Central and Admiralty was made at 1:36 am on 28 September 2014. As the judge found, the Trio clearly “wanted to ride with the tide of events”[168] as they were unfolding.

130.  Not surprisingly, the judge found that the Trio knew exactly what would happen, and they intended it to happen[169]:

“In my judgment, D1 to D3 each knew the implementation of their agreement, i.e. the occupation of the public places and roads in or in the neighbourhood of Central between the period 28 September 2014 and 2 December 2014 would lead to blockage of roads and extensive obstruction to traffic. I am sure D1 to D3 each knew what the effect of the occupation of the carriageways would have on the traffic in or in the neighbourhood of Central before the announcement on 28 September 2014. After the announcement on 28 September 2014 and until the cessation of the agreement on to 2 December 2014, the effect that the obstruction of the roads had on the traffic was there for them to see as each day passed. I am sure the state of affairs that D1 to D3 intended to bring about as a result of their modified agreement to launch the Occupy Central movement at Tim Mei Avenue on 28 September 2014 would necessarily amount to or involve the commission of the offence of public nuisance.”

To suggest, in the circumstances of this particular case, that the applicants could not have known, or could not have intended, the consequences of their actions in advance is to surrender reality and common sense to an abstract and theoretical notion of the reasonable exercise of individual rights.  We cannot accept the argument that the applicants, having planned the Occupy Central Movement for some 18 months, and having seen how events had unfolded in Tim Mei Avenue, did not knowingly conspire to commit, or incite, a public nuisance.

131.  Given this analysis, we should also deal with a different but connected argument, advanced by Mr Choy, that the judge erred in holding that the reasonableness test had subsumed within it a consideration of proportionality[170], and thereby failed to determine, by adopting the “no more than necessary” test or at all, whether the implementation of the “exclusion plan” was proportional to achieving any legitimate aim[171].  In our view, it is perhaps more significant to look at what the judge actually considered throughout his examination of whether “the right balance [had been] struck between the competing rights of the protestors in a peaceful demonstration and the rights of other members of the public without infringing the exercise of the constitutionally protected rights of the protestors”[172].  We would observe that the judge appeared to accept PW2’s evidence of the need to close Tim Mei Avenue for the legitimate purpose of enabling the public meeting to be conducted and carried on safely[173], and explained why, in the context of the mass demonstration contemplated, the “exclusion plan” was not only “reasonable and lawful” but a “necessary and proportionate measure” to counter the imminent threat to occupy CGO[174].  We do not accept this criticism of the judge’s findings.

I.1.3.  The third main issue

132.  The third main issue we must address is whether the facts in the present case showed, and the prosecution should accordingly have charged, a conspiracy to incite rather than a conspiracy to commit public nuisance, since, it is argued, three men in the form of the Trio could not themselves cause a public nuisance.  However, it is somewhat artificial to suggest that only three persons were involved who could cause the public nuisance.  The reality is that there had been a significant gestation period before the announcement of the commencement of the actual occupation, in which much effort and resources had gone into the planning of the Occupy Central Movement, vast numbers of people were anticipated and a huge impact was expected to result.  Indeed, the impact had already been clearly evident in the events at Tim Mei Avenue.  The Trio had piloted the Occupy Central Movement from its inception in March 2013.  It is, with respect, fanciful to suggest that they could not conspire to cause a public nuisance, when it had never been the Trio’s agreement to cause an obstruction by themselves alone.  The conspiracy in Charge 1 to which they were parties, as found by the judge, had all along been that thousands of people at least would be involved in the eventual occupation.  The Trio, as the principal organisers of the Occupy Central Movement, must have known that the consequences of such occupation would be far-reaching and would inevitably cause a public nuisance.

133.  In the English case of R v Stockli [2018] 1 WLR 5609, there were seven defendants who had been jointly charged with exactly the same offence; namely, conspiracy to cause a public nuisance.  The nuisance concerned was an illegal rave party in a disused London Fire Brigade building, without the permission of the owners, which had caused substantial disturbance to local residents and considerable violence and disorder in the vicinity of the building.  The seven defendants were involved in the organisation of the rave: one was responsible for ordering the printing of some 10,000 flyers or leaflets; another was responsible for spreading word of the event (the venue of which was to remain secret until the night in question); another was the disc jockey; and the remaining four were responsible for conveying the music equipment and drinks to the building.  It was alleged that “each defendant, by being involved in the organisation, must have appreciated that there was a real risk that, if the event happened as planned, it would create noise (from music and from the crowd of people attending) of such volume as to endanger the comfort of local residents”[175]. 

134.  The judge at trial had, for reasons we shall discuss in another connection shortly[176], stayed the proceedings in the Crown Court and the prosecution duly appealed to the Court of Appeal against his ruling.  No issue was ever taken that those organising the illegal rave could not by their mere number, or by their mere function of ordering the printing of leaflets, spreading the word or bringing equipment and drinks to the building, have been guilty of conspiring to cause a public nuisance.  Nor was it suggested that the basis of the Crown case against the seven defendants qua organisers of the event was misconceived. Burnett LJ (as Burnett LCJ then was), giving the judgment of the Court, ruled that the prosecution of the defendants was not an abuse of the process, nor an assault on the integrity of the criminal justice system.  Accordingly, he overturned the stay of proceedings and ordered the trial to resume[177].

I.1.4.  The fourth main issue

135.  It may be convenient if we deal at this juncture with an allied issue, which is the fourth main issue, raised by those charged with incitement to commit public nuisance and incitement to incite public nuisance.  It is argued that the relevant applicants could, and should, have been charged with a substantive obstruction offence under section 4(28) of the Summary Offences Ordinance, dealing with nuisances committed in public places.  Section 4(28) reads:

“4. Any person who without lawful authority or excuse –

…..

(28) does any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic;

…..

     shall be liable to a fine of $500 or to imprisonment for 3 months.”

136.  Reliance for this submission was placed on the judgment of Lord Bingham of Cornhill in Rimmington, at [30]:

“Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences or for which the potential penalty is unlimited. … I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.” (Emphasis supplied)

137.  The argument that the common law offence should not have been used when there was a statutory alternative was also dealt with in Stockli.  In that case, it had been suggested on behalf of the defendants, again in reliance on Rimmington, that it was wrong for the prosecution to pursue a charge of conspiracy to cause a public nuisance, when there was a clear statutory alternative under section 136 of the Licensing Act 2003. Burnett LJ’s response to this argument was[178]:

“The first question is whether breach of the licensing laws captures the essence of the offending.  The clear answer to that question is “no”.  The Licensing Act 2003 establishes a single integrated scheme for licensing premises which are used for the sale or supply of alcohol, to provide regulated entertainment, or to provide late night refreshment. Liability falls on someone who fails to obtain or comply with the necessary licence. Section 136 is not aimed at the organisation of an illegal rave or its consequences, certainly not of the magnitude in question here.  Mr Lovell-Pank informed us that this rave involved the largest deployment of Metropolitan Police since the 2011 London riots.  A charge under section 136 would not reflect the seriousness and extent of the offending supported by the evidence and (at least arguably) would not give the courts adequate powers to sentence and impose post-conviction orders.  It is inevitable, in the event of conviction, that aggravating factors will include the consequences of the rave, even if the defendants were not directly involved in, for example, the criminal damage inflicted or the violent disorder that occurred.  The prosecution say they were entirely foreseeable consequences.

The offence under section 136 is thus not a realistic alternative to the common law offence of public nuisance on the facts of this case.  At best, as the Crown submits, breach of the licensing laws is part and parcel of the overall conspiracy.

In short, the gravamen of the alleged offending here, namely the agreement to organise a secret, large-scale and illegal rave in a residential built-up area, the location of which was to be deliberately withheld from the relevant authorities, does not fall comfortably or at all within the identified statutory alternatives.  The common law offence of public nuisance goes above and beyond the statutory offences identified which is why, for example, Lord Bingham in R v Rimmington [2006] 1 AC 459 was unable to exclude the possibility that there might be circumstances when the common law offence would need to be invoked.  This is not a case like R v Dady [2013] Lloyd’s Rep FC 300 where the judge was able, at para 21, to conclude that the statutory offence in question “precisely caught” the criminal conduct being alleged.

For these reasons, we conclude that the judge was wrong in law to conclude that there was one or more relevant alternative statutory offences.”

138.  To paraphrase Burnett LJ’s judgment in Stockli, a charge under section 4(28) of the Summary Offences Ordinance was never aimed at combatting the organisation of an illegal obstruction of the magnitude in question in this case.  It would not have reflected the seriousness and extent of the offending, nor would such a charge have given the courts adequate powers to sentence the applicants.  Put simply, such an offence was not a realistic or suitable alternative to the common law offence of public nuisance on the facts of this case.  Moreover, it is important to remember, as Lord Bingham put it in Rimmington[179], that “central to the content of the crime (of public nuisance) was the suffering of common injury by members of the public by interference with rights enjoyed by them as such”.  It was with that same feature of the offence in mind that Wright J decided in a magistracy appeal, namely, HKSAR v Pearce (2009) 5 HKLRD 1, that there was good reason for prosecuting the appellant under the common law offence rather than an obstruction offence under the Summary Offences Ordinance, because[180]:

“… the single major consideration was the factor of common injury, so prominent in these proceedings, which was a factor absent from s. 4(28) of the Summary Offences Ordinance.”

139.  We therefore reject the argument arising under the third main issue that the prosecution should have charged an offence of conspiracy to incite rather than a conspiracy to cause a public nuisance; and we further reject the proposition, under the fourth main issue, that conduct on this scale and of this seriousness in its impact and effect on the public, could adequately have been dealt with by a substantive offence without recourse to the common law offence of causing a public nuisance.

I.1.5.  The fifth main issue 

140.  It will be recalled that in Rimmington, the appellants had argued that[181]:

“…the crime of causing a public nuisance, as currently interpreted and applied, lacks the precision and clarity of definition, the certainty and the predictability necessary to meet the requirements of either the common law itself or article 7 of the European Convention”.

Having surveyed relevant authority on the origins and application of the offence, Lord Bingham disagreed and determined that the common law offence of public nuisance was nevertheless “clear, precise, adequately defined and based on a discernible rational principle”[182].

141.  Rimmington has been followed by the Court of Final Appeal in Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480.  In the light of what must be considered high authority in the United Kingdom and Hong Kong, the argument was refined before us to suggest that the common law offence of public nuisance was nevertheless legally uncertain when considered in the context of a lawful assembly.  This brings us to the fifth main issue to be addressed, namely, legal certainty.

142.  If one accepts, as we must, that the offence of causing a public nuisance per se passes the test for legal certainty, then the applicant’s residual room for manoeuvre is significantly narrowed and ultimately hangs upon the question of whether the applicants knew or must have known that the obstruction was unreasonable and thereby unlawful, in the context of civil disobedience.  The principles applicable to the question of legal certainty in criminal offences have been summarised by Sir Anthony Mason NPJ on behalf of the Court of Final Appeal in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, at [61]-[62]:

“A criminal offence must be so clearly defined in law that it is accessible and formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, whether his course of conduct is lawful or unlawful. It is, however, accepted that absolute certainty is unattainable and would entail excessive rigidity. Hence it is recognized that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the courts.

The concept of legal certainty recognizes that in a common law system, the common law, declared as it is by the judges, involves an incremental element of judicial lawmaking, whether by way of moulding the law to meet new circumstances and conditions or to correct errors of principle or doctrinal error.  In any event, with the common law, as with the interpretation of statute law, it is inevitable that questions continue to arise which require clarification by judicial decision.  That is one reason why absolute certainty is unattainable and why some degree of vagueness is inherent in the formulation of laws, especially laws expressed in general terms.”

143.  It may be remembered that Lord Bingham in Rimmington, at the outset of his judgment, acknowledged that “interference with the use of a public highway or a public navigable river provides the best and most typical example” of socially objectionable conduct falling outside the law of private nuisance[183]. His conclusion that the offence of public nuisance was legally certain must, therefore, be taken to have had the question of demonstrations on public highways firmly in mind.  Moreover, nowhere in any of the other judgments in Rimmington was it suggested that the offence might be legally uncertain in a particular permutation of the offence, such as a lawful demonstration.  It should not be forgotten, of course, that we are not here dealing with a demonstration for which any permission had been given by the police.  Nevertheless, the question remains: what makes the use of a public highway a public nuisance and how can one know when a particular use incurs criminal liability?

144.  A judgment we have, with respect, found particularly helpful in answering this question is that of Stock JA (as Stock NPJ then was) in the Court of Appeal decision of HKSAR v Yeung May Wan & Others (2004) 3 HKLRD 797, at [88]-[89]:

“Thus it is that modern democratic society accepts as normal the use of pedestrian areas, such as pavements and squares and plazas, for the handing out of leaflets, for collections, for passing time, for electioneering, for sitting to enjoy lunch or the company of friends and, amongst a host of other acceptable activities, for carrying placards and for protesting and exercising the right of assembly. Though recognizing that the right of passage is the prime object of the highway and should not unreasonably be impeded, so that these other activities accommodate the right of passage, nonetheless the right of passage must reasonably accommodate the exercise of other rights. That accommodation is part of the give and take of any modern city that purports to be tolerant and cognizant of the plurality of rights to be enjoyed by, and indeed protected for the benefit of, the variety of its residents and the manifold interests and views that they espouse at any given time. This same variety of interest and views necessarily means that what is important to one man may be unimportant or perhaps even irksome to the next; but if there is to be true respect for the rights of all then some must occasionally put up with a degree of inconvenience. It is always a question of what is reasonable, of the effect of the one upon the other, a question to be addressed with maturity and objectivity but realizing all the while that fundamental rights are rights, not to be begrudged as some necessary nuisance, but to be promoted, let alone protected. These notions are not merely recognitions of intrinsic values and the product of developed human rights law, but are pronounced and enshrined by the Basic Law, and it therefore behoves the courts of this jurisdiction all the more to ensure that the right is not mouthed as a platitude, but is accorded full effect in the application of our laws to everyday situations. I do not, with respect, think that the court below sufficiently appreciated the accommodation required as between these rights or that it struck the balance between them that the particular facts allowed and demanded.

It is clear from DPP v Jones [1999] 2 AC 240 …, and from those dicta in obstruction case decisions endorsed by the majority:

(1) that reasonable use of the highway contemplates more than passing and re-passing; and

(2) that the essential issue is whether the use of the highway by others was, not just impeded, but unreasonably impeded.” (Original emphasis)

Stock JA’s reasoning was approved by the Court of Final Appeal in the subsequent appeal to that Court, Yeung May Wan & Others v HKSAR[184]. The majority in the Court of Final Appeal went on to say[185]:

“Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.”

145.  The judge in the case before us was clearly aware of these important principles, for he said in terms[186]:

“In considering the offences that concern this case, i.e. ‘Conspiracy to cause a public nuisance’, ‘Incitement to cause a public nuisance’ and ‘Incitement to incite a public nuisance’, which all concerned the common law offence of public nuisance, I have to consider the application of the reasonableness test expounded in Yeung May Wan and in the context of obstruction caused as a result of a peaceful demonstration, I have to bear in the forefront of my mind the protection given by the Basic Law to the right to peaceful demonstration and give it substantial weight in the balancing exercise.”

146.  Having specifically reminded himself of the passage in Yeung May Wan & Others v HKSAR in the Court of Final Appeal to which we have just referred, the judge then continued[187]:

“I agree with the Prosecution’s submission in reply that the application of the reasonableness test for the offence of public nuisance in respect of obstruction of public roads is a proportionate response to protect the exercise of the constitutional right to peaceful demonstration by the protesters on the one hand, and on the other hand, the rights and freedoms of other members of the public.  The protection of these competing interests should be approached with care taken to balance the competing rights of the protesters and the rights of other members of the public, and when the obstruction under complaint is resulted from a peaceful demonstration, in applying the “reasonableness” test, the court should not define the bounds of reasonableness so narrowly as to devalue or unduly impair the ability to exercise the constitutional right.”

147.  The judge then applied the reasonableness test to the facts of the present case[188], and concluded, in a passage we have already cited[189] on the issue of knowledge[190]:

“In my judgment, D1 to D3 each knew the implementation of their agreement, i.e. the occupation of the public places and roads in or in the neighbourhood of Central between the period 28 September 2014 and 2 December 2014 would lead to blockage of roads and extensive obstruction to traffic. I am sure D1 to D3 each knew what the effect of the occupation of the carriageways would have on the traffic in or in the neighbourhood of Central before the announcement on 28 September 2014. After the announcement on 28 September 2014 and until the cessation of the agreement on 2 December 2014, the effect that the obstruction of the roads had on the traffic was there for them to see as each day passed. I am sure the state of affairs that D1 to D3 intended to bring about as a result of the modified agreement to launch the Occupy Central movement at Tim Mei Avenue on 28 September 2014 would necessarily amount to or involve the commission of the offence of public nuisance.” (Emphasis supplied]

148.  We should emphasise that the judge made specific findings in the passage above (as italicised), and elsewhere in his judgment, that the Trio knew what the consequences of their actions would be before they announced the commencement of the occupation on 28 September 2014. The test approved by the House of Lords in Rimmington was that “the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequences of what he did or omitted to do”[191].  Plainly, the judge found that test to be fulfilled.  To our mind, that disposes of any residual argument that the applicants may not have known that what was being caused or incited was anything less than a public nuisance entailing an unlawful obstruction of the highway.

I.1.6.  The sixth main issue

149.  The sixth main issue concerns the question of whether the common law offence of ‘incitement to incite’ should form part of the common law of Hong Kong.  There is no doubt that incitement is an offence under English (and Hong Kong’s) common law.  Accordingly, it has been held by the English Court in R v Mohammed Sirat that one may, in consequence, also commit the offence of incitement to incite.  Mohammed Sirat was considered with apparent approval by this Court in R v Kong Yue Kwai [1996] 4 HKC 709.  There is a useful commentary on the offence by Sir John Smith in the Criminal Law Review report of R v Sirat [1986] Crim LR 245, at 246:

“The Court had no doubt that incitement to incite is an offence at common law. It is submitted that that is right but it should be noted that the authority for it is not great. See Smith & Hogan, Criminal Law (5^th ed.), pp 224-225; Cromach [1978] Crim LR 217; Bodin [1979] Crim LR 176; Hollinshead [1985] Crim LR 301; James [1986] Crim LR 118 and commentaries thereon. It is important, however, to distinguish between an incitement to incite and an incitement to aid abet counsel or procure. The latter, it is submitted, is not an offence. This is, indeed, implicit in the present decision. If ‘incitement to commit an offence’ meant ‘incitement to commit it either as a principal or as a secondary party,’ there would have been only one offence in the present case. The difference, of course, is that incitement is an offence whereas aiding, abetting, counselling or procuring is not an offence but a way of participating in the offence of another.”

150.  The judge was addressed on the legality and constitutionality of the offence of ‘incitement to incite’ and gave a comprehensive ruling[192], well before the commencement of the trial proper, to the effect that the offence was both justiciable and constitutional under Hong Kong law.  We agree with his conclusions and see no reason why the offence should not exist under our common law.  Since this argument was not pursued with any great vigour during oral argument in this appeal, we do not propose to say any more on the question.

I.1.7.  The remaining grounds of appeal

151.  The resolution of these six main, or key, issues will dispose of the central thrust of the legal arguments of all applicants in this appeal.  Lest there be any doubt on the matter, we reject all of the applicant’s grounds of appeal as to law.  For example, the complaint that the prosecution had failed to prove the necessary mens rea of the offences, which the judge dealt with, in our view, correctly and at great length, is without substance when the arguments under the fifth main issue fall away.

152.  There remain the factual grounds of appeal, which we have earlier mentioned, and which we have examined with care. However, realistically, without the benefit and context of the legal arguments which underpin them, and which we have rejected, they cannot sensibly advance this appeal on behalf of any of the applicants.  The trial proper, apart from preliminary arguments, took 22 days, involved 9 defendants, and engaged the services of 8 Senior Counsel and 12 junior counsel. There were a significant number of issues of fact and law for the judge to resolve.  This was an onerous task for any judge sitting alone, yet it is abundantly clear from his detailed and comprehensive reasoning, as well as his handling of the trial and the rulings before and during the trial, that he was fully conversant with both the law and the relevant facts.  We see no error at all in his reasoning, nor do we accept that he has overlooked an important piece of evidence in his resolution of this case.  We do not regard any of the factual complaints as reasonably arguable.

153.  In conclusion, we find no reasonably arguable grounds of appeal against conviction on any of the grounds advanced before us and refuse leave to appeal.  It follows that the appeals against conviction by each of the applicants must, accordingly, be dismissed.

I.2.  Discussion as to sentence

154.  We turn to the remaining question of the two appeals against sentence.  We were treated to a lengthy but comprehensive submission from Mr Shek on behalf D1, with which Mr Lok for D8 associated himself, dealing with a number of cases in England and Wales and the European Court of Human Rights.  However, other than reminding us of the importance of allowing a citizen to demonstrate peacefully and not “discouraging him and other opposition supporters, as well as the public at large, from attending demonstrations and, more generally, from participating in open political debate”[193], it is important that we decide this matter in the context of Hong Kong; mindful of what Lord Bingham described as the central content of the crime of public nuisance; namely, “the suffering of common injury by members of the public by interference with rights enjoyed by them as such”[194].

155.  The judge expressly bore in mind that “the underlying motivation for committing Charge 1 was to fight for the form of universal suffrage that D1 to D3 advocated and to protect the arrested student leaders.  Their motive was not one of greed, lust, anger or monetary reward”[195].  However, he considered that the public nuisance which D1, D2, D5, D6 and D7 had incited those at Tim Mei Avenue to commit “was very serious, in terms of the number of carriageways obstructed, the duration of the obstruction, the number of participants and the common injury caused to the public”[196].

156.  On the latter, and vital, element of common injury in the present case, the judge said[197]:

“At the material times, the nine defendants just looked up to their aspirations and looked forward to the universal suffrage they wanted to achieve. They failed to notice the ordinary folks who needed to use the carriageways in question to travel to work to make a living. The martyrdom the defendants exhibited was a contorted one in which the price that each of them was prepared to pay also had to be borne by the ordinary folks. Whilst the defendants were prepared to break the law and accept legal consequences to the extent the charges to be laid would meet their expectation, the excessive damage and inconvenience caused by the obstruction had to be borne by many others.

D1 in one of his speeches made to the people at Tim Mei Avenue, emphasised the various touching moments in the Occupy Movement.  However, the other side of the story was that as the participants were fuelling the movement with their passions, the movement was also causing excessive inconvenience and suffering to many members of the public, as the computer certificates of the three bus companies show.”

157.  In our judgment, these remarks were mild.  This was no mere demonstration in Central in support of a cause that exceeded its original remit: it was a determined and sustained effort to paralyze the main arterial roads in the very centre of Hong Kong for weeks on end in order to pressure the Government into changing its mind, and which went far beyond a matter of inconvenience for ordinary citizens going about their business and trying to earn their living. 

158.  As we have said, the judge presided over the trial which lasted from arraignment to sentence for some 22 days.  However, there were numerous pre-trial reviews and preliminary arguments mounted, resulting in the case in fact spanning well over a year.  The judge was in the best position to determine the overall seriousness of this matter and the respective roles and culpability of the defendants, having listened to the evidence and heard submissions from the parties.

159.  We have had regard to the evidence sought to be admitted at the appeal on behalf of D1 on a de bene esse basis but we do not think it would make the slightest difference to the outcome of this appeal.  Accordingly, we are not prepared to admit it.  Furthermore, whatever the judge may have said about D1 and others’ lack of regret or apology “for the inconvenience and sufferings they had caused to members of the public who had been affected”[198] was more than outweighed by the generous discount of 2 months’ imprisonment, which he gave for D1’s positive good character.

160.  We do not regard the appeals against sentence by either D1 or D8 to be reasonably arguable and leave is likewise refused and the appeals dismissed.

J.  Conclusion

161.  The applications for leave to appeal against both conviction and sentence are refused.  All appeals against both conviction and sentence are, accordingly, dismissed.

162.  Finally, we should like to commend the judge for the comprehensiveness and clarity of his Reasons for Verdict in this case which, despite their necessary length, have greatly assisted this Court in dealing with the issues which fell to be considered.  As may readily be seen from the papers and the available transcript, he conducted a difficult trial with no less than 20 counsel representing 9 defendants with consummate patience, fairness and ability.